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Show NEBRASKA 343 Unlike the quoted statement from this 1941 Federal case, the Nebraska Supreme Court in its 1951 decision did not expressly limit its quoted language regarding permissible changes in locational use to appropriative rights acquired prior to 1895. But the appropriative right in dispute had in fact been acquired (in 1893) prior to 1895.66 Moreover, although the statement in the 1951 opinion regarding permissible changes in locational use of appropriated water was woven into the judicial argument, it was not necessary to the actual decision. In the last analysis, the decision rested on the points that the purpose of an irrigation district is to furnish water to lands within its boundaries; that no one can gain a right to use district waters merely by using them for irrigation purposes for a period of time; that the statutory procedure for bringing outside lands within an irrigation district and its water rights is exclusive; and that in the instant case such procedure had not been followed. An appropriative water right may be lost to the holder by abandonment- relinquishment of the right by its owner without any regard to future possession by himself or anyone else, but with the intention to forsake or desert the right.67 The water rights statute provides that when an appropriator or his successor in interest ceases to use the water appropriated for some beneficial or useful purpose, the right ceases. It further provides a procedure under which the Department of Water Resources, subject to appeal to the supreme court, declares forfeitures of any water appropriation not put to beneficial use, or ceased to be so used for more than 3 years.68 The constitutionality of this 66State w.Birdwoodlrr. Dist., 154 Nebr. 52, 54, 46 N.W. (2d) 884 (1951). In an earlier case, Farmers' & Merchants' Irr. Co. v. Gothenburg Water Power & Irr. Co., 73 Nebr. 223, 227-228, 102 N.W. 487 (1905), discussed at note 60 supra, the court spoke of the "irrigation law of 1895." It appears to have been referring entirely or largely to the 1895 statute mentioned earlier at note 57 (which was similarly so described in Farmers' Irr. Dist. v. Frank, 72 Nebr. 136, 138-139, 100 N.W. 286 (1904), supra note 58). It perhaps also had in mind this provision of the 1895 act pertaining to irrigation districts. But at any rate, as in the 1951 Nebraska case, the water appropriations in dispute were made prior to 1895. As mentioned in note 65 supra, this case was cited in the 1941 Federal case which expressly distinquished appropriative rights acquired before 1895. It also was cited, in addition to the 1941 Federal case, in the 1951 Nebraska case. 67State v. Nielsen, 163 Nebr. 372, 381, 79 N.W. (2d) 721 (1956); Farmers'Irr. Dist. v. Frank, 72 Nebr. 136, 154-156, 100 N.W. 286 (1904). 68 Nebr. Rev. Stat. § §46-229 to -229.05 (1974). Section 46-229.03 was amended in 1973 so as to provide that the notice of hearing shall call upon all persons interested in such water appropriation to show cause why all or part of the same should not be canceled and annulled, and that if no one appears at the hearing such appropriation or unused part thereof shall be declared forfeited and annulled. Laws 1973, LB 186, §§5 and 6. The Nebraska Supreme Court appears to have indicated in a 1956 case that this statute does not affect the question of the perfection of an appropriative right based on an application since the 1911 enactment. North Loup River Pub. Power & Irr. Dist. v. Loup River Pub. Power Dist., 162 Nebr. 22, 26-28, 74 N.W. (2d) 863 (1956). ("The (Continued) |
